Disability Dismissal Is Not Just Unfair -- It May Be Discriminatory
If you have been dismissed and your disability was a factor in that decision, you potentially have two separate claims running simultaneously: an unfair dismissal claim and a disability discrimination claim. The discrimination claim is available from day one of employment -- no qualifying period. The compensation is uncapped. These are two of the most significant advantages in employment law and together they create a much stronger position than either claim would provide alone.
The Four Routes to a Disability Dismissal Claim
Direct disability discrimination: you were dismissed because of your disability. The employer treated you less favourably than they would have treated a non-disabled comparator in the same circumstances. This is rare in dismissal cases because employers rarely state disability as the reason -- but where the timing of dismissal follows closely on a disability disclosure, the inference can be drawn.
Discrimination arising from disability: you were dismissed for a reason that arose in consequence of your disability. This is the most common and powerful route. Examples: dismissed for persistent absences caused by your disability, dismissed following a failed performance improvement plan where the performance difficulties were caused by your disability, dismissed for conduct that was a symptom of your disability. The employer must show the dismissal was a proportionate means of achieving a legitimate aim -- a high bar where no adjustments were attempted.
Failure to make reasonable adjustments leading to dismissal: the employer failed to make adjustments that would have allowed you to continue in employment, and the dismissal followed. If a straightforward adjustment -- flexible working, modified duties, additional support -- would have resolved the situation and the employer refused, the dismissal is very difficult to justify.
Indirect disability discrimination: a provision, criterion, or practice that applies to all employees but puts disabled employees at a particular disadvantage, and which led to your dismissal. Example: a blanket no-absence policy that is applied without considering disability-related absences.
The Disability Qualification
You must be disabled within the meaning of the Equality Act 2010: a physical or mental impairment with a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities. Many conditions qualify that employees do not realise are covered: depression, anxiety disorders, chronic pain, fibromyalgia, diabetes, cancer (from diagnosis), HIV (from diagnosis), multiple sclerosis, crohn's disease, ulcerative colitis, ADHD, autism, dyslexia, and many others. The focus is on the effect of the condition, not its diagnosis or label. A condition that has these effects and has lasted or is expected to last at least 12 months is a disability under the Act.
What the Employer Must Show
For discrimination arising from disability, the employer must show the dismissal was a proportionate means of achieving a legitimate aim. Legitimate aims include maintaining attendance standards and maintaining a working workforce. But proportionality requires that the means -- dismissal -- was no more than necessary to achieve the aim. An employer who dismissed without first attempting reasonable adjustments, without obtaining medical evidence, without consulting the employee about their prognosis and options, and without considering alternative roles has almost certainly failed the proportionality test. The dismissal in those circumstances is likely to be discriminatory even if the employer had a genuine business reason for wanting to resolve the attendance or performance issue.
The Knowledge Requirement
The employer must have known, or reasonably ought to have known, about your disability at the time of the acts you are complaining about. You do not need to have formally declared yourself disabled. If your employer was aware of your condition and its effects -- even informally, even through sickness absence records, even through conversations with your manager -- they may be taken to have had constructive knowledge. An employer who says "we did not know they were disabled" but who had received a GP note stating the employee was suffering from depression, and who had been told by the employee they were struggling with mental health, will struggle to establish absence of knowledge.
Combining Claims
If you have two years service, bring unfair dismissal alongside the discrimination claims. If you do not have two years service, check whether any automatically unfair reason applies -- dismissal connected to disability that also touches on a protected act (a grievance, a request for adjustments, a complaint) may also be automatically unfair, which has no qualifying period. The ET1 allows you to tick multiple jurisdiction boxes. Use them all. A claim that fails on one ground may succeed on another. A claim that succeeds on multiple grounds will result in a higher award.
Time Limit and Next Steps
Contact ACAS at acas.org.uk immediately. Your time limit is three months less one day from the date of dismissal. The ACAS early conciliation process pauses the clock. Gather your evidence now: any communications about your condition, any requests for adjustments and the responses, your sickness absence record and the reasons for absence, performance management documentation, the dismissal letter, and any occupational health reports. This evidence is the foundation of your claim. The stronger the paper trail, the stronger the case.